Category: Law School Notes

 PUDR is an organization formed for the purpose of protecting democratic rights. It commissioned three social scientists for the purpose of investigating and inquiring into the conditions under which the workmen engaged in the various Asiad Projects were working.
 Based on these investigations, the petitioner addressed a letter to Justice Bhagwati complaining of violation of various labour laws by the Respondents and seeking interference by the Supreme Court. The Supreme Court treated the letter as a writ petition on the judicial side and issued notice to the Union of India, Delhi Administration and the Delhi Development Authority.
 Inter alia, the allegations in the petition were: (i) The provisions of Equal Remuneration Act, 1976 were violated as the women workers were being paid less and the balance of the amount of the wage was being misappropriated by the Jamadars: (ii) There was violation of Article 24 of the Constitution and of the provisions of the Employment of Children Acts, 1938 and 1970 in as much as children below the age of 14 years were employed by the contractors in the construction work of the various projects; (iii) There was violation of the provisions of the Contract Labour (Regulations and Abolition) Act, 1970 which resulted in deprivation and exploitation of the workers and denial of their right to proper living condition and medical and other facilities under the Act.
 The SC spoke in favour of the attempt to safeguard the constitutional and legal rights of the workers through this petition. It held that Judges in the country must view violations of labour laws with strictness and whenever any violations of labour laws are established before them, they should punish the errant employers by imposing adequate punishment.
 The labour laws are enacted for improving the conditions of workers and the employers cannot be allowed to buy off immunity against violations of labour laws by paying a paltry fine which they would not mind paying, because by violating the labour laws they would be making profit which would far exceed the amount of the fine.
 Many of the fundamental rights enacted in Part III operate as limitations on the power of the State and impose negative obligations on the State not to encroach on individual liberty and they are enforceable only against the State. But there are certain fundamental rights conferred by the Constitution which are enforceable against the whole world and they are to be found inter alia in Articles 17, 23 and 24.
 Where a person provides labour or services to another for remuneration which is less than the minimum wage, the labour or service provided by him clearly falls within the scope and ambit of the words “forced labour“ under Article 23. Such a person would be entitled to come to the court for enforcement of his fundamental right under Article 23 by asking the court to direct payment of the minimum wage to him so that the labour or service provided by him ceases to be ‘forced labour’ and the breach of Article 23 is remedied. Ordinarily no one would willingly supply labour or service to another for less than the minimum wage, when he knows that under the law he is entitled to get minimum wage for the labour or service provided by him. Therefore when a person provides labour or service to another against receipt of remuneration which is less than the minimum wage, he is acting under the force of some compulsion which drives him to work though he is paid less than what he is entitled under law to receive.
 It is the duty of the State to create laws that protect the fundamental rights of the workers and enforce them. To the extent that such laws impose restrictions on the freedom to contract, such restrictions are reasonable and therefore justified under the Constitution.
 These in particular include child labourers, contract workers and migrant workers.

Excel Wear is a partnership firm manufacturing garments for export. About400 workmen were employed in the petitioners’ factory. The case of the petitioners is that the relations between the management and the employees started deteriorating and became very strained from The workmen became very militant, aggressive, violent and indulged in unjustifiable or illegal strikes. The petitioners claim that as a result it became almost impossible to carry on the business.

The petitioners, therefore, served a notice dated 2nd May, 1977 on the Government of Maharashtra for approval of closure of the undertaking The State Government refused to accord the approval on the ground that the intended closure was prejudicial to public interest.

The petitioners contended:

(a) A right to close down a business is an integral part of the right to carry on a business guaranteed under Art. 19 The impugned law imposes a restriction on the said fundamental right which is highly unreasonable, excessive and It is not a restriction but almost amounts to the destruction or negation of that right.

(b) A right to carry on a business includes a right not to carry on a business which is like any other right mentioned under Article 19(1)

(c) The restrictions are unreasonable because- (i) Section 25(o) does not require giving of reasons in the order. (ii) No time limit is to he fixed while refusing permission to close down. (iii)Even if the reasons are adequate and sufficient, approval can be denied in the purported public interest of security of Labour is bound to suffer because of unemployment brought about in almost every case of closure. (iv) It has been left to the caprice and whims of the authority to decide one way or the other. No guidelines have been given.

The workers contended that the restrictions imposed by the impugned law are quite reasonable and justified to put a stop to the unfair labour practice and for the welfare of the It is a progressive legislation for the protection of a weaker section of society.

The workers also did not accept that a right to close down a business is an integral part of the right to carry on any According to them, the total prohibition of closure only affects a part of the right to carry on the business and nota total annihilation of this. The restriction imposed was in public interest and there is a presumption of reasonableness in favour of a statute.

The SC agreed with the workers and held that the right to close down a business cannot be equated with a right not to start or carry on n business at all. The extreme proposition urged on behalf of the employer by equating the two rights and placing them at par is not sound. If one does not start a business at all, then perhaps under no circumstances, he can be compelled to start one. Under no circumstances, a person can be compelled to speak, to form an association or to acquire or hold a property.

But by imposing reasonable restrictions, he can be compelled not to speak, not to form an association or not to acquire or not to hold property. A total prohibition of business is possible by putting reasonable restrictions under Article 19(6) on the right to carry on a business. However, the greater the restriction, the more the need for strict scrutiny by the Court.

The SC agreed with the workers and held that the right to close down a business cannot be equated with a right not to start or carry on n business at all. The extreme proposition urged on behalf of the employer by equating the two rights and placing them at par is not sound. If one does not start a business at all, then perhaps under no circumstances, he can be compelled to start one. Under no circumstances, a person can be compelled to speak, to form an association or to acquire or hold a property.

But by imposing reasonable restrictions, he can be compelled not to speak, not to form an association or not to acquire or not to hold property. A total prohibition of business is possible by putting reasonable restrictions under Article 19(6) on the right to carry on a business. However, the greater the restriction, the more the need for strict scrutiny by the Court.

What are the considerations for determining whether it is legal or illegal?

‘Gherao’ is a physical blockade of a target, either by encirclement or forcible occupation. The ‘target’ may be a place or a person or persons, usually the managerial or supervisory staff of an industrial establishment. The blockade may be complete or partial and is invariably accompanied by wrongful restraint, and / or wrongful confinement, and occasionally accompanied by assault criminal trespass, mischief to person and property, unlawful assembly and various other criminal offences.

What role should the police play in the situation of a “gherao” considering the act falls under the IPC as wrongful confinement, but is linked to labour rights? “legitimate labour movement”

Section 17 immunity does not extend to an agreement to commit an offence

 There were industrial disputes between the appellant and its workmen, and the last of the awards revised wage scales taking into consideration the cost of living index then prevailing. It also provided for annual increments but rejected the workmen’s demand to link up the wage scales with the index of cost of living.
 After the workers had received two annual increments under that award, they served a notice on the employer calling for revision of the scale of wages. The dispute was referred to the Industrial Tribunal and the Tribunal retained the scales fixed in the previous award and treating them as based on the cost of living index prevailing, directed that the wages should be linked up with the cost of living index. The award also directed that effect should be given to it retrospectively from the date of demand by the respondents.
 It came in appeal to the SC and it was contended that the award as regards wages should be set aside because
(a) the Tribunal took a wrong view as to what would constitute minimum wages
(b) it ignored the financial capacity of the appellant
(c) the linking up of the wage scales with the cost of living index was wrong; and
(d) the Tribunal did not take into consideration the principle of region-cum-Industry.
 The SC held that there was no reason to interfere with the minimum wage rate fixed by the Tribunal.
 The Tribunal retained the scales fixed by the previous award and only provided for automatic rise or fall therein with the corresponding change in the index of cost of living. The tribunal also observed that the appellant had to pay the minimum wages irrespective of its ability to bear the additional burden.
 The SC agreed with the Tribunal and said that in prescribing a minimum wage rate the capacity of the employer need not be considered as the, State assumes that every employer must pay the minimum wages before he employs labour, and must not run an enterprise employing workers is it is unable to pay the minimum wage.
 The idea of fixing minimum wages in the light of the cost of living at a particular juncture of time and of neutralizing the prevailing high prices of essential commodities by linking up scales of minimum wages with the cost of living index is not alien to the concept of minimum wages.
 If the tribunal had not linked up the wage scales with the living cost, the wage scales would have become unrealistic, as the cost of living index had gone very much higher up since the Tribunal gave its award.
 The capacity of the employer and the wage scales prevailing in comparable industries in the region, are relevant factors while, fixing fair wages, but not when fixing minimum wages.

Facts? – manufacturing products of non-ferrous metals and alloys – claim that no change of circumstances justifying a revision of wages, pay scales and dearness allowance

What should be the factors for making a determination of wages?

The concepts of “living wage”, “fair wage” and “minimum wage” are important.

Minimum – bare subsistence

Fair – provide a standard family with food, shelter, clothing, medical care and education of children appropriate to the workman. It is linked to the earning capacity and the workload.

Living – a wage which is sufficient to provide not only the essentials but a fair measure of frugal comfort with an ability to provide for old age and evil days. It is a goal of labour welfare movement, but not the norm.

The concept of minimum wages is for the State to fix a minimum threshold for the per hour / per day wages to be payable by the employer to workmen. Paying less than the minimum wage is unlawful. Minimum wage is for “bare subsistence”.

The purpose of minimum wages is to make sure that a reasonable threshold is fixed that achieves social as well as economic ideals.

In achieving this objective, industrial adjudication takes into consideration principles like principle of comparable wages, productivity of the trade or industry, cost of living and ability of the industry to pay.

The application of these principles lead to different categories of wage structures, usually described at the living wage, fair wage, minimum wage.

The fixation of a wage-structure is a delicate task because balance has to be struck between the demands of social justice to give workmen their proper share in national income which they help to produce, and depletion of profits which motivates running of an enterprise.

Section 3 of the Act requires the appropriate government to fix the minimum rate of wages payable to employees employed in respect of the work specified in Part I or Part II of the Schedule to the Act. The Schedule can be amended by the appropriate government from time to time by way of a notification.

The wages may be fixed for the whole State or separately for parts or areas of the State.

The government is also required to review the rates every five years and revise them if necessary.

The government may fix the wage on time rate basis or piece rate basis.

The government may fix a separate rate for overtime.

Different rates may be fixed for different scheduled employments; (ii) different classes of work in the same scheduled employment; (iii) adults, adolescents, children and apprentices; (iv) different localities.

Section 3 of the Act requires the appropriate government to fix the minimum rate of wages payable to employees employed in respect of the work specified in Part I or Part II of the Schedule to the Act. The Schedule can be amended by the appropriate government from time to time by way of a notification.

The wages may be fixed for the whole State or separately for parts or areas of the State.

The government is also required to review the rates every five years and revise them if necessary.

The government may fix the wage on time rate basis or piece rate basis.

The government may fix a separate rate for overtime.

Different rates may be fixed for different scheduled employments; (ii) different classes of work in the same scheduled employment; (iii) adults, adolescents, children and apprentices; (iv) different localities.

These wages have to be paid in cash and not in kind, except if under special circumstances the government authorizes payment in kind in specific cases.

Contravention of the provisions of this Act is punishable with imprisonment or fine or both.

Section 15 – Wages of worker who works for less than normal working day.

If an employee whose minimum rate of wages has been fixed under this Act by the day works on any day on which he was employed for a period less than the requisite number of hours constituting a normal working day, he shall, save as otherwise hereinafter provided, be entitled to receive wages in respect of work done by him on that day as if he had worked for a full normal working day: Provided, however, that he shall not be entitled to receive wages for a full normal working day, in any case where his failure to work is caused by his unwillingness to work and not by the omission of the employer to provide him with work.

 After the services of the respondent, who was working as a Confidential Lady Stenographer with the petitioner-company, were terminated on June 13, 1977, she instituted a petition before the Adjudicatory Authority appointed under the Equal Remuneration Act, 1976 complaining that during the period of her employment, after the Act came into force, she was being paid remuneration at the rates less favorable than those paid to the Stenographers of the male sex in the petitioner’s establishment for performing the same or similar work and claimed that she was entitled to recover the difference between remuneration paid to her and the male Stenographers.
 The petitioner opposed the petition contending that the respondent and other lady Stenographers who had been doing the duty as Confidential Stenographers were not doing the same or similar work which the male Stenographers were discharging; and that since there was no discrimination in salary on account of sex, the Act had not been violated.
 The Authority found that the male Stenographers and the lady Stenographers were doing the same kind of work, but rejected the complaint holding that in view of a settlement arrived at between the employee’s Union and the management the respondent was not entitled to any relief. The Appellate Authority allowed the appeal of Respondent holding that there was clear discrimination and directed the petitioner to make the payment of the difference between the basic salary and dearness allowances paid to respondent and her male counterparts.
 The matter came before the SC in appeal and the court held that in order to grant relief under the Act and to decide whether the work is the same or broadly similar and whether any differences are of practical importance, the Authority should take an equally broad approach, for the very concept of similar work implies differences in details, but these should not defeat a claim for equality on trivial grounds.
 It should look at the duties actually and generally performed not those theoretically possible by men and women. Where, however, both men and women work at inconvenient times, there is no requirement that all those who work e.g. at night shall be paid the same basic rate as all those who work normal day shifts. Thus a woman who works days cannot claim equality with a man on higher basic rate for working nights if in fact there are women working nights on that rate too, and the applicant herself would be entitled to that rate if she changed shifts.
 It cannot be suggested that there can be no discrimination at all between men and women in the matter of remuneration on the basis of nature of work which women may not be able to undertake but in such cases there cannot be any discrimination on the ground of sex. Discrimination arises only where men and women doing the same or similar kind of work are paid differently.
 Wherever discrimination is alleged, there should be a proper job evaluation before any further enquiry is made. In the instant case, the Authority, the Appellate Authority have found that the Confidential Lady Stenographers were doing the same work or work of a similar nature, which the male Stenographers in the establishment of the petitioner were performing. The lady Stenographers were attached to the senior Executive working in the petitioner-company. In addition to the work of the Stenographers they were also attending to the persons who came to interview the senior Executives and to the work of filing, correspondence etc. There was practically no difference between the work which the Confidential Lady Stenographers were doing and the work of their male counter-parts.
 The terms of the settlement have to defer to the provisions of the Act which clearly provide that equal pay for equal work must be paid. The SC therefore affirmed the holdings and held that the difference should be paid.

 The common question that arose for decision by this Court is whether payment of less salary to a senior than his junior in the same cadre having the same scale of pay is violative of the principle of “equal pay for equal work”. There are a bunch of appeals clubbed together.
 The facts in relation to one appeal relate to Assistant Section Officers of Andhra Pradesh High Court. Copyists and Assistants are the two feeder channels to the post of assistant Section Officers. Prior to 1974 the Copyists were in the pay scale of Rs.70-130, and consequent upon pay revision, they were given the pay scale of Rs.250-430. The Copyists represented that while revising their grade, the additional emoluments which they were getting had not been taken into consideration. On recommendation of the High Court, the State Government agreed to fix the pay of the Copyists in the revised grade by adding to their basic pay Rs.83.34P, that being the average remuneration that each Copyist was earning.
 The common question that arose for decision by this Court is whether payment of less salary to a senior than his junior in the same cadre having the same scale of pay is violative of the principle of “equal pay for equal work”. There are a bunch of appeals clubbed together.
 The facts in relation to one appeal relate to Assistant Section Officers of Andhra Pradesh High Court. Copyists and Assistants are the two feeder channels to the post of assistant Section Officers. Prior to 1974 the Copyists were in the pay scale of Rs.70-130, and consequent upon pay revision, they were given the pay scale of Rs.250-430. The Copyists represented that while revising their grade, the additional emoluments which they were getting had not been taken into consideration. On recommendation of the High Court, the State Government agreed to fix the pay of the Copyists in the revised grade by adding to their basic pay Rs.83.34P, that being the average remuneration that each Copyist was earning.
 Another batch of appeals is filed by Tirumala Tirupathi Devasthanam. One B.V. Krishnamurthy and 62 others working as Upper Division Clerks in the Devasthanam filed writ petition in the High Court seeking that the Devasthanam be directed to pay salary to them at par with one D. Gopaliah, U.D.C. who was junior to them. Gopaliah joined as Lower Division Clerk in 1967 and was given Selection Grade in 1974. An incentive of Rs. 11 was added to his salary in 1977. He was promoted in 1979 but was reverted in 1981. He was given further increase in pay upon completion of 15 years service. He was again promoted and in that cadre, on the basis of his pay in the lower grade, his salary was fixed at Rs.861. On the other hand Krishnamurthi who joined as Lower Division Clerk in 1970, and promoted a little before Gopaliah, his salary was fixed at Rs.615.
 Therefore, Gopaliah though junior to Krishnamurthy started drawing more salary. Following his earlier decision, the learned Single Judge allowed the Writ Petitions filed by Krishnamurthy and others similarly placed. Their Writ Appeals were dismissed. Hence these appeals by Devasthanam. The Tribunal held that the rule of equal pay was violated under these facts.
 Before the SC upon appeal, it was contended by the appellants employers that so long as there is rational basis for giving higher pay to junior in the same cadre, the seniors can have no grievance. The last pay drawn in the lower cadre has to be the basis for fixation of salaries and following that basis, the salaries have been rightly fixed.
 It was also argued that only if all the consideration, factors and incidents of service are identical then only the principle of “Equal pay for equal work” is attracted. If there is justification under the Rules or otherwise for giving a higher pay to the junior then the principle in the abstract sense is not attracted.
 The Supreme Court held that doctrine of “Equal pay for equal work” cannot be put in a straight jacket. Although the doctrine finds its place in the Directive Principles, this Court, in various judgments, has authoritatively pronounced that right to “equal pay for equal work” is an accompaniment of the equality Clause enshrined in Article 14 and 16.
 Reasonable classification, based on intelligible criteria having nexus with the object sought to be achieved, is permissible. “Equal pay for equal work” does not mean that all the members of the cadre must receive the same pay packet irrespective of their seniority, source of recruitment, educational qualifications and various other incidents of service. When a single running pay-scale is provided for a post in a cadre, the Constitutional mandate of equal pay for equal work is satisfied. Ordinarily grant of higher pay to a junior would ex facie be arbitrary but if there are justifiable grounds in doing so, the seniors cannot invoke the equality doctrine.
 Difference on grounds such as, when persons recruited from different services or promoted, is based on intelligible criteria which has rational nexus with the object sought to be achieved and it therefore does not violate the mandate of equal pay for equal work.

The State Policy Article 39 of the Constitution envisages that the State shall direct its policy towards securing equal pay for equal work for both men and women. It is not a fundamental right, but a constitutional goal.

Section 2(h) of the Act defines “same work or work of a similar nature” – it says that work in respect of which the skill, effort and responsibility required are the same, when performed under similar working conditions, by a man or a woman, and the differences, if any, between the skill, effort and responsibility required of a man and those required of a woman are not of practical importance in relation to the terms and conditions of employment;

Section 4 of the Act requires employers to pay equal wages for equal work. It says – No employer shall pay to any worker, employed by him in an establishment or employment, remuneration, at rates less favorable than those at which remuneration is paid by him to the workers of the opposite sex in such establishment or employment for performing the same work or work of a similar nature.

Section 5 also requires employers not to discriminate while recruiting – It says – no employer shall, while making recruitment for the same work or work of a similar nature, or in any condition of service subsequent to recruitment such as promotions, training or transfer, make any discrimination against women except where the employment of women in such work is prohibited or restricted by or under any law for the time being in force.

 The facts are that by a notification dated August 16, 1957, the Government of Bihar introduced a provision into the Bihar Government Servants‘ Conduct Rules, !956, which provided that “No Government servant shall participate in any demonstration or resort to any form of strike in connection with any matter pertaining to his conditions of service.”
 The appellants filed a petition before the High Court of Patna challenging the validity of the rule on the grounds, inter alia, that it violated Article 19. The High Court took the view that the freedom guaranteed under Article 19 did not include a right to demonstrate or to strike so far as servants of Government were concerned, and the impugned rule was saved as imposing reasonable restrictions.
 The SC upon appeal held that the new provision in so far as it prohibited any form of demonstration, was violative of Article 19 and therefore the entire rule that put a blanket restriction without any exceptions, should be struck down in its entirety.
 On account of nature of the duties which government servants discharge, certain restrictions on their freedoms might have to be imposed. In that regard, to the extent the rule prohibited strikes was valid, because there was no fundamental right to resort to a strike.